Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.

The original enabling and subsequent legislation offered a path for the gradual and equitable transition of land use from industrial livestock production to the higher and better use of production of nature’s goods and services for the benefit of future generations. But things haven’t worked out as Congress planned. While Congress came up with the money and ranchers took the money, the ranchers insisted on staying after their quarter century was up, and the National Park Service (NPS) has accommodated them.

Today, of the 71,055 acres of federal public land within PRNS, about 18,000 acres are still fully dedicated to the industrial production of domestic livestock by thirty-five private operations.

Not unlike what Congress has done in other cases where significant amounts of private land were involved in the establishment of a national conservation unit, authority was granted to the NPS to acquire private inholdings from willing sellers. The law stipulated that owners of improved or agricultural property within PRNS could use and occupy the land for a term not to exceed twenty-five years or until the death of the owner or the owner’s spouse, whichever is later, with the owner to choose the terms. Landowners who exercised the option to sell were paid fair market value for their land minus, if any, the fair market value of the retained rights.

It’s been more than fifty-six years since the establishment of PRNS in 1962. Between 1962 and 1972, twenty-seven ranchers voluntarily sold their lands to the NPS, retaining either a twenty-five-year lease fenceor a life estate. They were paid $57 million, the equivalent of $380 million in today’s dollars.

Even though the ranchers were paid the fair market value of the property minus the fair market value of reservation of use, at the end of the quarter century the dairy and beef cattle producers wanted to stay. The NPS accommodated them by granting, and continuing to grant, five-to-ten-year extensions for the private operators to continue ranching on the lands they freely sold at fair market value to the federal government. However, the ranchers are not satisfied with the status quo, as they seek NPS approval for “agricultural diversification,” which includes chickens, pigs, and sheep as well as row crops (artichokes are a big thing right now), with on-site processing.

Point Reyes is a great place to ranch. Mild weather with lots of rain on productive soils means lots of forage for domestic livestock. The grazing fees are cut-rate, and taxpayers subsidize ranching there in other ways as well.

Ranchers pay the NPS $7–$9/AUM (animal unit month: enough forage to sustain a cow and calf for one month). This is more than the grazing fee ranchers are charged on Forest Service and Bureau of Land Management holdings ($1.41/AUM in 2018), but on the other hand, the USDA National Agricultural Statistics Service found the average fee for non-irrigated private forage in 2017 to be $20.60/AUM.

Because it is federal land they are cow bombing, the ranchers don’t pay any real estate property tax. Ranchers also rent the houses they live in that are owned by the NPS at below local fair market value. Additionally, as the Resource Renewal Institute points out, the NPS spends staff time and money on these activities related to ranching in the national seashore:

Installing and maintaining fences to avoid conflicts between wildlife and cattle, and people and cattle

Replacing and repairing roofs, barns, and other infrastructure at ranch residences

Monitoring and managing ranches for lease-compliance

Evaluating impacts of ranch operations to park resources

Hazing elk off pastures leased to ranchers

The Effects of Cow Bombing on the National Seashore

But even if ranchers were paying fair market value for grazing in PRNS, this would not excuse cow bombing a national seashore. The environmental sins of industrial livestock production, especially within a national seashore, are many and varied:

· Agricultural mowing for hay or silage is quite harmful to ground-nesting birds.

· Spreading manure on fields within PRNS spreads invasive and noxious weeds, and also harms water quality of the creeks and nearby ocean and estuaries.

· Point Reyes has some of the most polluted streams in California, with fecal coliform numbers exceeding health standards more than half the time.

· Any forage that goes through domestic livestock is not available for native wildlife—not just ungulates like tule elk but also other native wildlife species that use the grass and wildflowers for food, cover, and nesting.

· Domestic livestock, especially dairy cattle and their dairies, are an olfactory assault.

Point Reyes is the only National Park System unit that hosts tule elk. The tule subspecies of elk (Cervus canadensis nannodes) is native to and found only within California. Before the European invasion, an estimated half million tule elk thrived in California, ranging from the Central Valley to the coastal grasslands. Excessive hunting and habitat destruction were thought to have driven the species to extinction, and the California State Legislature banned their hunting in 1873, a bit late.

Fig. 8. Tule elk at Tomales Point in Point Reyes National Seashore. Source: Wikipedia.

Luckily, in 1874 several elk were discovered by a rancher in the process of draining a marsh. He protected the elk, though upon his death the ranch was subdivided and hunting resumed. Nonetheless, the elk have slowly recovered their numbers, and today the tule elk population in California is around four thousand.

One of the reasons for the increase is the reintroduction of tule elk to PRNS, a piece of landscape that tule elk had occupied for more than ten thousand years. This reintroduction was initiated by a resolution passed by Congress in 1976 that authorized the use of federal public lands in California to reintroduce elk extirpated from those lands. But unfortunately, some tule elk in PRNS have contracted paratuberculosis (a.k.a. Johne’s disease), an infectious and incurable gastrointestinal disease. The native tule elk are getting the disease from grazing livestock pastures upon which livestock manure has been spread.

Approximately six thousand head of private livestock are grazing in PRNS, about ten times more animals than the native tule elk that live there. To protect the ranchers from tule elk grazing upon “their” pastures, the NPS has used fencing in an attempt to contain the native elk.

Map 3. The white polygons are active livestock ranches within Point Reyes National Seashore. Not shown is the non-free-range tule elk area on Tomales Point at the north end, where the elk are fenced by the NPS to prevent their free movement.Source: National Park Service.

The 1916 statute that established the National Park Service stated that the purpose of the National Park System is “to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”

In 1976, in a law establishing a 25,370-acre Point Reyes Wilderness and potential wilderness additions of 8,003 acres) within PRNS, Congress improved upon the original 1962 PRNS enabling statute by directing that PRNS shall be administered by the NPS “without impairment of its natural values, in a manner which provides for such recreational, educational, historic preservation, interpretation, and scientific research opportunities as are consistent with, based upon, and supportive of the maximum protection, restoration, and preservation of the natural environment within the area.”

Fig. 10. Rep. Phil Burton was probably the most effective public lands conservationist ever to serve in the U.S. House of Representatives. In recognition, the wilderness area in PRNS was renamed the Phillip Burton Wilderness in 1985.* Source: Wikipedia.

Two years later, in 1978, responding to those who wanted PRNS ranching to continue, Congress further provided regarding PRNS: “Where appropriate in the discretion of the Secretary, he or she may lease federally owned land . . . which was agricultural land prior to its acquisition. Such lease shall be subject to such restrictive covenants as may be necessary to carry out the purposes of this Act.” In other words, any such leases must comply with the “without impairment” / “maximum protection” requirement the law earlier specified. Yes, Congress set up the NPS to take the fall.

But the NPS didn’t do what it was mandated to do. Instead, it issued agricultural leases inconsistent with the purposes of PNRS. While the NPS has some discretion in managing PRNS, it must follow congressional direction, which is this case is unambiguous. The continued granting of permits to continue industrial livestock operations within PRNS is simply not legal.

Sue the Bovines

Accordingly, the Resource Renewal Institute, the Center for Biological Diversity, and the Western Watersheds Project (represented by Advocates for the West) sued the National Park Service over the matter. The plaintiffs settled with the NPS (and thirty-five intervening ranchers), with the NPS agreeing to prepare an environmental impact statement and amend the PRNS general management plan by 2020.

The Latest Plot Twist: Fake News

In the latest plot twist, in an “explanatory statement” submitted by House Appropriations Committee chair Nita M. Lowey,” regarding the appropriations bill that kept the federal government from again shutting down today was this gem on page 324 of a 609-page document.

Point Reyes National Seashore.-The Conferees note that multi-generational ranching and dairying is important both ecologically and economically for the Point Reyes National Seashore and the surrounding community. These historic activities are also fully consistent with Congress's intent for the management of Point Reyes National Seashore. The Conferees are aware that the Service is conducting a public process to comply with a multi-party settlement agreement that includes the preparation of an environmental impact statement to study the effects of dairying and ranching on the park. TheConferees strongly support the inclusion ofalternatives that continue ranching and dairying, including the Service's Initial Proposal to allow existing ranch families to continue ranching and dairying operations under agricultural lease/permits with 20-year terms, and expect the Service to make every effort to finalize a General Management Plan Amendment that continues these historic activities. [emphasis added]

“[E]cologically … important”? Fake news.

Just saying it doesn’t make it so. This is a version of what is known as “legislative history,” which are documents or statements produced to explain, elaborate, and even sometimes contradict the plain text of the actual legislative language that Congress voted on. In this case, it is an attempt to create a legislative history that may be useful later in court cases. Legislative history cannot explain away rational statutory construction.

There is no statutory language pertaining the continued cow-bombing of PRNS. Legislative history can be helpful to judges interpreting legislative intent when the statutory language is unclear (which is often the intent and result of Congress), but it cannot overwrite statutory language. Only new statutory language can do that. There are only one representative and two senators who were in Congress in 1976 to vote on the later act and are still serving today.. In any case, the statutory language is clear.

While I am not a fan of the late Justice Antonin Scalia, he was spot-on on legislative history: “The statute is what Congress voted on, not what some committee member said he thought it meant. I don’t care what he thought it meant, since the rest of the Congress didn’t know what he thought it meant when they voted for the law.” Especially in cases 40 to 56 years after Congress voted on the actual language.

Most Environmental Groups: Missing in Action

The PRNS law may be on the side of nature, but the local politics are not. Many of the hot-tubbing, chardonnay-sipping, Prius-driving liberals who stereotypify Marin County and the greater San Francisco region generally prefer their local and sometimes organic ice cream and beef from Point Reyes over nature and native wildlife. This local, sometimes organic, and always tasty ice cream and beef are nonetheless not sustainable if for no other reason that it occurs in a unit of the National Park System that is dedicated to a higher and better use.

Many environmental groups that would normally be quite concerned about industrial livestock operations in a unit of the National Park System that come at the expense of tule elk, imperiled steelhead, water quality, scenery, recreation, and more are simply missing in action. Those environmental groups that have stepped up have chosen to rely more on the court of law than the court of public opinion. As Mariniacs are generally within the base of environmental groups, most environmental groups have been unwilling to address the incongruity straight on.

It applies both to national environmental groups who have agendas far larger than one cow-bombed national seashore, but also some local groups that either worship ranching or don’t want to get on the wrong side.

Furthermore and quite surprisingly and disappointingly, Representative Jared Huffman (D-CA-2nd)—who has a 99 percent lifetime score from the League of Conservation Voters and in a previous life was a senior attorney with the Natural Resources Defense Council but represents the congressional district where PRNS is located—pushed a bill in the 115th Congress to statutorily enshrine livestock above nature in PRNS and authorize the killing of tule elk. His bill would have negated the settlement among conservationists, ranchers, and the NPS.

Fig. 11. Rep. Jared Huffman is generally a great conservationist, but he’s wrong on domestic livestock in Point Reyes National Seashore. If he keeps it up, perhaps someday Congress will honor him by naming the ranchlands in the national seashore the Jared Huffman National Cow-Bombing Area. Source: Wikipedia.

The bill had one cosponsor, the devil incarnate—Representative Rob Bishop (R-UT-1st), then chair of the Committee on Natural Resources in the House of Representatives. The bill was fast-tracked and passed the House in a few months in 2018. Fortunately, the bill died in the Senate. Fortunately, Bishop is no longer the chair of the committee. Unfortunately, Huffman is now chair of the Water, Oceans, and Wildlife Subcommittee of that same committee. It’s ironic in that Huffman’s bill would facilitate continued pollution of water flowing into the ocean by domestic livestock at the expense of native wildlife.

The Huffman-Bishop bill would have required the NPS to issue twenty-year leases to the ranchers, elevating private domestic livestock over native wildlife and the public interest, and negating the 1976 congressional directive. The bill would also have authorized the relocation or killing of tule elk impinging upon agricultural activities within PRNS. To date, Representative Huffman has not reintroduced his despicable bill.

The livestock operators say they need twenty-year permits to be able to finance their operations. While there is some truth to that, the fundamental question is whether the NPS should be giving out such permits at all. There are other places to raise beef and dairy cattle, but there is only one Point Reyes National Seashore.

* Phil didn’t like to hike but did like to smoke and drink and most especially to push grand conservation bills through the House of Representatives. His success is unequaled to this day. He came within one vote of being House majority leader, losing to a Texan who later became speaker and resigned in disgrace. Upon Phil’s unexpected death in 1983 at age fifty-six, one-third of the House attended his funeral in California—many to honor him, others to make sure he was really dead. I miss Phil.

Fig. 16. Ungrazed relic coastal prairie with Pacific reedgrass, which grows in moist areas of beach, dune, and woodland, and in wetlands at Point Reyes National Seashore. Source: Restore Point Reyes National Seashore.

A ~1,000-word weekly exposition on some aspect of federal or state public lands in the United States. Some blog posts goes rather deep and serve as a useful (I hope) backgrounders on particular public land areas, matters or issues. Other weeks, you’ll find a topical piece addressing a public lands controversy of the moment. This blog not only defends, but also extols, public lands.

Andy Kerr of The Larch Company (www.andykerr.net) splits his time between Ashland, OR and Washington, DC. He has been significantly involved in the enactment of more than 25 pieces of federal and state legislation and in copious litigation pertaining to public lands. Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.